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As part of the criteria for criminal prosecution of environmental crimes in terms of the Practice Note on the Principles of Enforcement of Environmental Legislation (Including Criteria for Criminal Prosecution and the Provision of Zero Tolerance Offences issued on behalf of the Environmental Management Inspectorate by the Department of Environmental Affairs) no person will be prosecuted for not being in possession of a valid authorisation if that person has taken all reasonable measures to obtain such an authorisation.
As has recently been observed, however, it appears that enforcement officials may have begun adopting an approach whereby the requirement to take all reasonable manners to obtain authorisations extends to having to institute judicial review proceedings and/or applications for orders to compel decision-making bodies to reach decisions on pending applications where decision-making processes on such applications take an inordinately long period of time to complete. Both procedures would involve persons who seek to lawfully commence, undertake or regularise activities which may have a detrimental effect on the environment having to approach a Court to intervene in matters where administrative action by government officials take inordinately long periods of time to be completed.
For obvious reasons the requirement of having to involve our Courts in matters involving the failure by the executive branch of government to fulfil its duties may be highly undesirable. It is also submitted that for applicants for environmental authorisations (or, for example, water licences) to have to resort to such measures, would in itself be unreasonable and the insistence by enforcement officials on this course of action may, in the absence of a reconsideration by government, itself require being addressed by our Courts. While this aspect has as yet not directly been addressed in case law dealing with environmental matters, the question as to when the failure by a decision-making body to reach a decision with respect to an application for an environmental authorisation should be sought to be progressed through Court proceedings, creates significant difficulties.
In the matter of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004) the Constitutional Court held that what constitutes reasonableness will depend on the circumstances of each case, but that a decision will be unreasonable if it is one that a reasonable decision-maker could not reach. Although a range of factors will be relevant in answering this question in each case, it is submitted that the failure by a decision-maker to reach a decision on an application for an environmental authorisation or water use licence within a prescribed period (or in the absence of a time period being specified, a reasonable period) is not a reasonable course of action for a decision-maker to which a legal consequence can be attached.
In the aforementioned matter the Constitutional Court went on to warn that Courts should not take over the functions of administrative agencies. A court must ensure that it recognises the proper role of the executive in the Constitution, and must not attribute to itself superior wisdom in relation to matters entrusted to other branches of government. Instead, the task of the Courts is to ensure that administrative decisions fall within the bounds of reasonableness required by the Constitution.
The issue of enforcement action brought about as a result of the failure by a person required to hold an environmental authorisation (or water use licence) to be able to produce such upon being requested to do so by enforcement officers, gains prominence in light of the National Environmental Compliance & Enforcement Report 2008/9, released by the Minister of Water and Environmental Affairs in November 2009 (the Report) which provides a clear indication of anticipated escalation in environmental compliance and enforcement actions in South Africa in the future.
Particularly with regard to environmental-legal compliance by the industrial sector, the Report envisages the stepping-up of enforcement actions based on the increased expectation that environmental officials will utilise significantly increased maximum penalties as well as the jurisdiction of magistrates' courts in enforcement proceedings as introduced in the most recent environmental-legislative amendments (see the National Environmental Laws Amendment Act 14 of 2009 and the National Environment Laws Amendment Act 44 of 2008, both which commenced on 11 September 2009 and which have been commented on before by CCI). Industry role-players need to be aware of and understand the increased stringency of environmental-legislative obligations brought about by amendments to existing Acts as well as by the introduction of new legislation (including the NEM: Waste Act and NEM: Air Quality Act).
Increasing statutorily-required authorisations, licenses, permits and certificates, together with the newly-reconfirmed retrospective applicability and punitive measures associated with the duty of care in terms of the National Environmental Management Act 1998, signal a clarion call to industry to anticipate and respond to the envisaged stepping-up of enforcement actions by government, as well as government strategising on ensuring that applications for environmental authorisations or licences are progressed through proper lawful administrative processes.
Janse Rabie
Associate
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